027-SLLR-SLLR-1997-V-1-MANAGE-v.-KOTAKADENIYA.pdf
MANAGE
v.
KOTAKADENIYA
SUPREME COURT.
OR. AMERASINGHE, J.,
WADUGODAPITIYA, J. ANDDHEERARATNE, J.
S.C. 439/95
SEPTEMBER 19 AND 30.1996.
Fundamental Rights – Constitution, Article 12(1) – Unequal treatment -Discriminatory conduct – Extension of service – Retirement, Section 12 PensionMinute – Public Administration Circular, 218- Disciplinary Proceedings.
The petitioner was first interdicted and thereafter retired from Service; hisapplication for an extension of service upon reaching 55 was refused.
The respondents position was for three specific offences stated it was consideredundesirable to allow the petitioner an extension of service.
Held:
No reasons were given for the findings in respect of the first two offences, inany event the appeal in one of them has not been concluded; with regard to the3rd charge it was withdrawn.
In the circumstances, the refusal to extend the services was not based onadequate grounds:
‘Although the' petitioner had not been reinstated and continued in serviceafter retirement by the 1st respondent, others who were similarlycircumstanced had been treated differently’.
Held Further
Order of retirement is bad in law as much as an order can be made only bythe Secretary to the Ministry (Public Administration Circular 218), moreover suchan order envisages formal disciplinary proceedings prior to such a decision.
APPLICATION under Article 126 complaining of the infringement of theFundamental Right of Equality.
L. C. Seneviratne PC. with Ronald Perera and N. D. S. Jayasinghe for petitioner.
K.Siripavan D.S.G. lor 1. 2.5.6, respondents.
Cur. adv. vult.
December 20,1996.
AMERASINGHE. J.
The petitioner was a Class I Post Master attached to theNugegoda Post Office. He was interdicted from service by letter P10and retired from service by letter P12. His application for anextension of service upon reaching the age of 55 years was refused.The petitioner was granted leave to proceed for the allegedinfringement of his Fundamental Rights guaranteed by Article 12(1)of the Constitution.
The following facts are not in dispute:
On the 1st of March 1995 the 1st respondent by her letterdated 1.3.95 imposed a fine of Rs. 10/- on the petitioner underChapter 48 of the Establishments Code.
On or about 2nd February 1995 the 2nd respondent served aCharge Sheet on the petitioner alleging that a false estimate relatingto repairs to official quarters had been submitted by the petitioner.The 2nd respondent had by his letter dated 9.6.1995 (P2) imposed afine of Rs. 4/- on the petitioner, having found that the petitioner's replywas unsatisfactory.
The petitioner was on 13th June 1995 alleged to h^ve kept 74Air Mail letters at the Nugegoda Post Office in the safe withoutinforming the Chief Post Master and without entering the relevantinformation in the register.
For these reasons, it was considered undesirable to allow thepetitioner an extension of service. The petitioner however, maintainsthat these were insufficient grounds for concluding that his conductwas unsatisfactory.
With regard to the 1st charge, the petitioner pointed out that aCharge Sheet had been served on him on 30th May 1991 (P3) towhich the petitioner had replied by his letter of 2.8.91 (P4). However,four years afterwards the petitioner received a letter from the1st respondent dated 1.4.95 (P5) wherein it was stated that theexplanation was unsatisfactory, although no reasons were given forcoming to that conclusion. The petitioner was informed that a recordof the imposition of the fine would be made in his personal file. Thepetitioner appealed from the order and the appeal is pending.
With regard to the 2nd charge too, the petitioner received only alaconic intimation that his explanation was unsatisfactory without anyreasons being given for the conclusion.
With regard to the 3rd charge relating to the Air Mail letters, thepetitioner states that he took the Air Mail letters that had been left onthe racks by the delivery men and kept them in the safe to preventthem being stolen. He states this was in accordance with the usualprocedure. The fact that this was the normal procedure iscorroborated by the affidavits of the Sorting Officer (P8), the AssistantPost Master of the Nugegoda Post Office (P9) and the Chief PostMaster of the Nugegoda Post Office (P9A). The 1st respondenthowever, seems to have preferred to act on statements made by twoPorters (1R5) and (1R6).
Although the petitioner had been charged in respect of the matterrelating to Air Mail letters on 14.8.95. the charges were withdrawn bythe Secretary to the Ministry at a hearing by the Committee on PublicPetitions.-
The sole ground for refusing to grant the extension of servicewhich the petitioner had sought was the 2nd respondent's opinionthat it was undesirable to extend the services of the petitioner in viewof the several offences he had committed. As we have seen, noreasons were given for the findings in respect of the first two offencesand in any event, the appeal in one of them has not been concluded.
With regard to the 3rd charge, it was withdrawn and thereforecannot be taken into account. The learned Deputy Solicitor-Generalexplained that the charge was withdrawn by the Secretary to theMinistry as a part of settlement under which the petitioner wasrequired to retire immediately after the charge was withdrawn. Thiswas denied by the petitioner who maintains that the charge waswithdrawn because it was ‘spurious". There is no affidavit from theSecretary supporting the averment that the withdrawal of the chargeswas a part of a settlement.
In the circumstances. I am of the view that the refusal to extendthe services of the petitioner was not based on adequate grounds.On the other hand, the petitioner pointed out that his problems beganafter a journal of his trade union, of which he was the editor, had beencritical of the 1st respondent. The relevant comments were made inJanuary 1995. It is significant that with regard to the 1st charge whichhad been made in 1991, the explanation of the petitioner had beenrejected and the fine imposed in March 1995.
It is to be noted that the Chief Post Master, Nugegoda and theDivisional Superintendent of Post, Colombo had recommended theextension of the petitioner's service (1R4) and !R4b).
Although the petitioner had not been re-instated and continued inservice after retirement by the Post Master-General, others who weresimilarly circumstanced had been treated differently. The petitionerhas given the instances of K. G. Albert, Grade I, Post Master,D. Wanni Arachchi, Class II. Post Master and P. Kodisinghe, Class IIPost Master who had been re-instated and given extensions ofservice after they had been retired.
For the reasons set out above, I am of the view that the petitionerhas been the victim of unequal treatment and discriminatory conductand this entitles him to declaration that his Fundamental Rights underArticle 12{1) of the Constitution had been violated.
The 1st respondent by letter dated 5.7.95 (P12) retired thepetitioner from service under Section 12 of the Pensions Minute(P13). I hold that the order of retirement is bad in law as such anorder can be made only by the Secretary to the Ministry. (See PublicAdministration Circular 218 (1R7). Moreover, such an order envisagesformal disciplinary proceedings prior to such a decision. I thereforequash the order of retirement made by the 1st respondent as beingno force or avail in the law.
The petitioner shall be paid a sum of Rs. 25,000/- as compensationand Rs. 5,000/- as costs.
DHEERARATNE, J. -1 agree.WADUGODAPITIYA, J. -1 agree.Application allowedRelief granted.